Excerpts From Judge Samuel A. Alito Jr.'s Confirmation Hearing

Following are excerpts from the Senate Judiciary Committee's confirmation hearing yesterday for Judge Samuel A. Alito Jr., President Bush's nominee for the Supreme Court. The senators heard witnesses who included Prof. Nora Demleitner, Hofstra University School of Law, former law clerk to Judge Alito; Prof. Erwin Chemerinsky, Duke University Law School; Prof. Anthony Kronman, Yale Law School; Prof. Charles Fried, Harvard Law School, former solicitor general of the United States; Prof. Laurence H. Tribe, Harvard Law School; Kate Michelman, former president, Naral Pro-Choice America; Jack White, former law clerk to Judge Alito; Theodore Shaw, president, NAACP Legal Defense and Educational Fund. The statements were recorded by The New York Times. A full transcript: nytimes.com/supremecourt.

Political Asylum

PROFESSOR DEMLEITNER -- While I clerked for him, he had to decide the case of Parastoo Fatin. Ms. Fatin had left Iran in order in part to be escaping the regime of Ayatollah Khomeini. She applied for asylum in the United States but was denied by the Immigration Court and by the Board of Immigration Appeals.

Now, without revealing any confidences, I can tell you that Judge Alito was very much moved by the personal tragedy of the situation and the moral dilemma Ms. Fatin would face. If returned to Iran, she would either be unable to speak her deep feminist convictions or the Iranian regime would penalize her.

Now, the problem with her case was that there was really an absence of favorable case law, and even worse, a very thin record that indicated only very limited opposition on her part to the Iranian regime.

Now, the judge did not see himself in a position to help Ms. Fatin, who was, however, ultimately permitted to stay in the United States. He, however, did take this opportunity to write one of the most progressive opinions on gender-based asylum law. Now, his decision was the first to recognize that gender alone could constitute a basis for asylum.

This revolution in asylum law has not been widely recognized outside a very small group of asylum practitioners, and neither has Judge Alito gotten a whole lot of credit for garnering the votes of both of his fellow panelists for this decision, one of whom was a Nixon appointee.

Presidential Power

PROFESSOR CHEMERINSKY -- The key question for this committee is whether Samuel Alito will continue this tradition of enforcing checks and balances, or whether he'll be a rubber stamp for presidential power.

I have carefully read the writings, the speeches and the decisions of Samuel Alito in this area, and they all point in one direction: a very troubling pattern of great deference to executive authority. I've closely followed the hearings this week, and I know you're familiar with the examples.

To mention just a few: In 1984, while in the solicitor general's office, Samuel Alito wrote a memo saying that he believed that the attorney general should have absolute immunity to civil suits for money damages of engaging in illegal wiretapping, a position the Supreme Court rejected in language that seems so appropriate now and saying there would be too great a danger of violation of rights from executive officials, who, in the zeal to protect national security, would go too far.

The next year, he said there should be increased use of presidential signing statements. He said, quote: The president should have the last word as to the meaning of statutes. There should be an increase in executive power.

As you know, in a number of writings and speeches, he said he believed in the unitary executive theory. Now, there's a good deal of discussion this week as to what that means. But if you look at the literature of constitutional law, those who believe in a unitary executive truly want a radical change in American government. They believe that independent regulatory agencies like the Securities Exchange Commission or the Federal Communication Commission are unconstitutional. They believe the special prosecutor's unconstitutional. They reject the ability of Congress to limit the executive.

Legal Integrity

PROFESSOR KRONMAN -- Sam was hardworking and ferociously bright; no one, I think, would challenge that. But that wasn't the first thing that impressed me about Sam. What impressed me first and most emphatically was his generosity and gentleness. When Sam spoke, in class or out, others listened; but when others spoke, Sam listened, and not just in the superficial sense of waiting politely until they had finished, but in the deeper and more consequential sense of straining to grasp the good sense of their position and to see it in its most attractive light.

Sam always spoke with modesty, but, even when he was defending a position that he believed clearly to be right, did so with the knowledge that he might be wrong. Learned Hand once described the spirit of liberty as the spirit that's not too sure of itself. That's a phrase that's always had a special meaning for me, and it well describes the quality in Sam that I noticed from the start.

I noticed something else and admired something else, as well, and that was Sam's faith in the law. Sam believed in the integrity of the law and in the essential fairness of its processes. Anyone who has studied the law knows that it is not a mechanical system. It requires moral judgments at many points.

But there is all the difference in the world between a person who approaches the law from the outside and views it an instrument for the advancement of some program, of one kind or another and a person who approaches it from the inside and whose fundamental leading allegiance is to the law itself. Sam falls clearly in that second category.

The Solicitor General's Office

PROFESSOR FRIED -- The Reagan administration, no doubt, had a point of view about the law, just as did the F.D.R. administration in 1933 or the J.F.K. administration in 1961. That is not unusual. That's what elections are about. Part of that view encompassed the notion that the lower courts had gone too far in limiting the ability of law enforcement; that the lower courts had moved too far away from an appropriate view of affirmative action, as expressed by Justice Powell in Bakke, towards quotas; and, I suppose, emblematic of the notion that courts sometimes just make things up was the notion that Roe v. Wade was incorrectly decided -- a notion, which, may I say, was shared by people across the political spectrum: -- Professor Paul Freund; Archibald Cox expressed that view as late as 1985; and Dean Ely.

Now, the first job of the staff of the solicitor general's office was to make sure that when the solicitor general presented the solicitor general's client's position to the Supreme Court this was done in a professional, correct and respectful way. That office had career lawyers, some of whom stretched back to the time of Lyndon Johnson. I, myself, appointed as deputies people who I knew to be Democrats -- liberal Democrats. None of that bothered me or bothered them because we were a professional office and they understood that their work was professional work. That is exactly how Judge Alito viewed his work.

A Decisive Vote

PROFESSOR TRIBE -- It is quite clear that there are two central concerns in the country and in the Senate with respect to this nomination. And they do not relate, honestly, to what a truly admirable collegial, modest, thoughtful and brilliant fellow Sam Alito is. I don't mean to call him Sam, I don't really know him the way that my colleague Charles does.

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They relate to whether Justice Alito might, by casting a decisive fifth vote on many cases, narrow the scope of personal liberty, especially for women, and broaden the scope of presidential power at a time when we see, dramatically, the dangers of an unfettered executive by weakening the ability of both Congress and the courts to restrict presidential assertions of authority.

A word first about liberty: It is certainly true that in the solicitor general's office the memorandum that Judge Alito wrote for the solicitor general did not urge that the court be confronted frontally, overrule Roe. But he made it clear even then that the strategy he thought wise to pursue was a step-by-step process toward the ultimate goal of overruling Roe. That is the only prospect on the table.

I assure you that if the Supreme Court actually overrules Roe, I will have thousands of students to tell that I predicted the wrong thing. That's not the danger. They won't say Roe v. Wade is hereby overruled. What they will do -- and I'm saying will because I am assuming that confirmation will occur. Maybe it won't. But with the vote of Judge Alito as Justice Alito the court will cut back on Roe v. Wade, step by step. Not just to the point where, as the moderate American center has it, abortion is cautiously restricted, but to the point where the fundamental underlying right to liberty becomes a hollow shell.

MS. MICHELMAN -- Predicting how any given judge will decide any given case is a Washington parlor game, in my view, that distracts from the central issue. That issue is whether we any longer will recognize limits on the government's authority to reach into the most intimate areas of our private lives.

There is nothing in Judge Alito's lengthy public record to suggest that he recognizes such limits for anyone and even less so for women. And there is much in his record that indicates, I think, clearly and beyond the boundaries of reasonable dispute that he rejects the idea of privacy, personal privacy as a fundamental American ideal.

A woman's right to choose is a powerful manifestation of privacy, but it is one right among many and all of them should concern us. There is no sense in Judge Alito's writings or rulings that privacy is a fundamental constitutional right. In his record, not only are individuals often powerless against the prerogatives of the state, individuals are more often than not simply absent altogether.

In many ways, what Judge Alito has written is less disturbing that what he omits, any sense of how his legal rulings bear on real people whose lives are shaped by his decisions. When he ruled that a Pennsylvania law requiring women to notify their husbands before obtaining an abortion was not, quote, an undue burden, there was no sense that a woman like me ever existed or even mattered. When he wrote that commonly used methods of birth control could be classified as methods of abortion, there was no indication he considered the women who would be forced into unwanted pregnancies.

Legal Analysis

MR. WHITE -- In order to provide some context for my comments, I'd like to share some personal information about myself. I'm the son of African-American parents born in the segregated South. Their respect for the recognition of civil liberties that enabled them to succeed and raise principled children inculcated the same respect in me. This respect is what led me to become a member of the N.A.A.C.P. and the A.C.L.U.

The same respect for our freedoms as Americans encouraged me to serve our country, after graduating from West Point, on active duty in the United States Army.

Now, as I clerked for Judge Alito, I saw a deep sense of duty, diligence, humanity and respect for his role as a federal appellate judge. Judge Alito required searching analysis of the factual and procedural background of every case. He required thorough evaluation of the applicable law in every case. He required -- he -- he uniformly applied the relevant law to the specific facts of every case.

Judge Alito recognized that every case was the most important case to the parties and attorneys with something at stake. There was no wavering from this consistent, predictable method of his judicial decision-making process. Working for Judge Alito, I saw in him an abiding loyalty to a fair judicial process, as opposed to an enslaved inclination toward a personal or ideological -- or to a political or personal ideology.

What I found most intriguing and particularly exceptional about Judge Alito's judicial decision-making process was the conspicuous absence of personal predilections. I never witnessed an occasion when personal or ideological beliefs motivated a specific outcome in a case. Indeed, after a year of working closely with the judge on cases concerning a wide variety of legal issues, I left New Jersey without knowing Judge Alito's personal beliefs on any of them.

The Issue of Race

MR. SHAW -- I want to be very clear because one of the members of this committee raised the issue of whether anyone was alleging that Judge Alito harbors a bias. I want to be very clear at the Legal Defense Fund -- on behalf of the Legal Defense Fund -- that we are not saying that he harbors racial bias or that he's a racist. That would, as I indicated before, diminish all of us.

Whatever his reason for ruling the way he does in cases, the record is consistently clear, as my colleague and friend Reginald Turner has indicated and as our report has indicated. It is very difficult for African-American plaintiffs in civil rights cases to prevail. Now it's not limited to African-American plaintiffs, but those are the individuals whom we represent at the Legal Defense Fund. Certainly his view of the interpretation of civil rights laws extends to gender discrimination, some of the cases of which we've highlighted in our report. And it extends to other areas with respect to individual rights.

Now, we believe that his views, with respect to reapportionment, which have been aired here are deeply troubling. We believe in the area of criminal justice, his views are troubling. But I particularly want to point to an area about which we have a deep concern.

The analogy with baseball has been very popular -- and I want to end on this point -- before this committee and in these nominations. And Judge Alito at one time used to like to say about affirmative action that Henry Aaron would not be regarded as the all-time home run king and hero that he is if the fences had been moved in whenever he came to bat.

I think that reflects a fundamental misunderstanding about affirmative action. The issue, with respect to civil rights and affirmative action advocates, is not asking -- is not about asking that the fences be moved in. It's about asking about an opportunity to take the field, to stand at the plate. It's about opportunity to play the game.